Employer has a say in work location

Sometimes, home is where your employer decides.

Photograph by: Stock photo
, Thinkstock

Sometimes, home is where your employer decides. Dean Ernst, vice-president, operations of Vancouver-based Destiny Software, had an enviable working arrangement. In his employment agreement, Ernst had managed to negotiate a term that allowed him to initially work from home in Chestermere, Alta. Steve Vestergaard, Destiny's president, reserved the right to demand he relocate to Vancouver but was prepared to temporarily accommodate Ernst's reluctance to uproot his family.

This concession was a function of the critical role Ernst played in the company's success. His job was to market its software to major record labels and companies outside Canada. Quickly ramping up the business was so important Ernst was expected to avoid taking time off during his first year of employment.

Ernst had different ideas. Citing a variety of personal issues, he requested, and was reluctantly provided, vacation leave even during critical periods. In one instance, Ernst told the company his father was ailing and alone and that he needed to be with him in Las Vegas. On another occasion, after the long May weekend, he called in sick claiming he and the family had caught the flu.

However, Ernst was neither tending to his sick father nor down with the flu. In reality, he was in the process of relocating to Mexico, where he had purchased a home. It was only when he purported to require yet another vacation that Ernst informed his employer he was moving to another country.

Vestergaard felt blindsided. He had accepted Ernst's home office arrangement on the understanding it was in Alberta and was temporary pending his move to Vancouver. It was immaterial that Ernst could maintain an Alberta telephone number and email in Mexico. His remote location impaired his ability to manage staff and lead corporate expansion.

Ernst was asked to produce a written proposal that addressed the implications of this unilateral relocation. Balking, Ernst replied that he saw no issues with his move and did not require his employer's consent. Faced with this response, Destiny fired Ernst, who, in turn, sued.

Madam Justice Elaine Adair of the B.C. Supreme Court sided with the employer, ruling Destiny had the final word to determine the employee's work location. Ernst's refusal to change his decision to move to Mexico amounted to a breach of his employment agreement and just cause for dismissal. Compounding his decision was his dishonesty and subterfuge in seeking time off. The action for wrongful dismissal was dismissed and Ernst was ordered to pay Destiny's legal costs.

This judgment is instructive to employers on successfully managing an employment relationship to its conclusion and laying the groundwork for just cause:

- Use written contracts. Destiny had a distinct advantage in that the expectation of the Canadian work location could be drawn from the employment agreement.

- Make terms specific. Had Destiny spelled out the location of the home office, the entire litigation likely would have been averted.

- Give reasonable warnings. Once Destiny learned of the imminent move, it clearly expressed its dissatisfaction with the decision and the impact it would have on their future relationship. Ernst was provided with the opportunity to reconsider his relocation.

- Avoid a condonation argument. An employer is given a relatively short time to investigate and assess the impact of an employee's conduct. Undue delay can amount to condonation, which may prove fatal to an otherwise valid case of cause.

- Develop alternate grounds for cause. The extent of Ernst's prevarications about the reasons for his vacations only emerged after his termination and during the pre-trial questioning. By doggedly pursuing this issue, Destiny was able to develop a second solid ground for cause - breach of trust - as an insurance policy, if the first failed.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.

Sometimes, home is where your employer decides.

Photograph by: Stock photo, Thinkstock

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